SUBBARAMA AYYAR Vs. CHINNASWAMI THANJIRAYAR

JUDGEMENT

(1.) The petitioner obtained a decree in O.S. No. 20 of 1929 on the file of the East Tanjore District Court and in execution thereof brought the properties of the judgment debtor to sale. The sale was fixed for 9 January 1931 and at the request of the judgment debtor was adjourned to 30 January 1931 to enable him to arrange for a private sale. It was further adjourned on that date at the request of the judgment debtor to 6 February 1931 on which date a third party who was present, respondent 1, namely, Chinnasami Thanjirayar, presented an application purporting to be under Order 21, Rule 69, Civil P. C, asking for an adjournment on the ground that he was prepared to purchase and an order was passed on this: Sale to go on from day to day till 13 February 1931 by which time the proposed purchaser Chinnasami Thanjirayar will pay into Court Rs. 2,000 to show his bona iides.

(2.) On 13 February an order was passed that the sale was to go on from day to day till the 17th. On the 17 the following order was passed: The sale adjourned to 24 April 1931 to enable the judgment debtor to effect private sale with a view to satisfy the creditor. If the sale is not completed by then, this amount of Rupees 2,000 will be forfeited. The question of distribution will be considered later.

(3.) Just above this order there is a note by the petition clerk : "Rs. 2,000 deposited to the credit of O.S. No. 20 of 1929." It may be noticed that by that time there had been some applications for rateable distribution put in by some decree-holders. On 24 April 1931 the sale was adjourned for one day more and on the 25 Thanjirayar put in another application asking for further adjournment of a month. His petition was rejected. The Court sale was proceeded with and the decree holder bought the properties. Subsequently Thanjirayar presented Ex. B. A. 128 of 1931 for the return of Rs. 2,000. The decree holder had put in an application asking that the amount should be paid to himself and there was one other petitioner who asked for rateables. The learned Judge who heard the petition was not the Judge who had passed the order with respect to this Rs. 2,000. Nevertheless he held that the order of his predecessor was incompetent and passed order to refund this Rs. 2,000 to the present respondent 1 Thanjirayar. Against that order the present Civil Revision Petition has been filed. The first ground taken is that respondent 1 cannot attack the order and that there was no application for review or revision, and if there was one it could not be granted. The second ground taken is that having had the benefit of the order he cannot now say that it should be set aside particularly when the parties cannot now be placed in their original position.